Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1887-05-08
TIE SUPREME COURT.

A. H. Willie, chief Justice; j, W, Stayton and
K. Z. Gaines. associate justices; G. s. Morse,
clerk; Nj. NJ. johnson, bailif.
Robert B. Capt ct ais. vs.. Jack Stubbs
ct al, from Blanco; opinion by Gaines,
A. J. This was an action of trespsss to
try title brought by appellees against ap-
pellants, Robert B. Capt and John Anger
stein to recover tract of land patented
to j. De Cordova. The original appellants
set UP that they were tenants of Felix
W. Capt who was made party. Appel
lees introduced patent to De CordOva, an
order of BOsque County court directing
L. B. Davis, administrator, to sell several
tracts OF land belonging to the De Cor
dova estate, and the sale of the tract in
controversy to J. G. Frazier, and order
of court confirming the sale, and deed
to Frazier. They also showed evidence
of 8 consecutive chain of title from
Frazier to themselves. Appellant, F. W.
Capt introduced deed from Louis Capt
to himself, but did not show whence his
grantor derived his title. He also proved
that the land in controversy which was
sold to Frazier was worth $500 to
$4,000 at the time of the sale, while the
court transcript showed that the land
was sold for 81. The leading question
raised is the validity Of the administra-
tors sale. Appellants showed no title
in themselves. They could have defeated
the action by showing a legal title in
third parties, but not by merely showing
an outstanding equity. Ii the sLle was
absolutely void the legal title TehaaSaed,
in De Cordova's heirs. If the Sale was
voidable appellants could not setaHp THU
defense without showing an interest JH
the estate. The principle ground to shiny
fraud was that the order of the dg9prt
confirming the sale did not show that
proof was heard as to the suffieiency of
the consideration. The court is pre-
sumed to have done its duty and the evil
dence was heard. If the sale was only
voldsble it was good until set aside al
the instance of one of the heirs or cred
itors in direct proceeding, and this right
was not available to appellants. The
court did not err in sustaining exceptions
to defendants answer in regard to the
non-jurisdiction of the court. The pay
ment of taxes by appellants, when they
had no interest in the land, did not entitle
them to recovery therefor. The
postponement of the trial to a
later day in the term complained
of was entirely in the discretion of the
court. The court did not err in permit
ting the introduction of the replevy bond
as evidence, because it was necessary for
the appplees' recovery OF costs from the
original defendants above mentioned up
to the time of their disclaimer. These
costs were recoverable from ORG
insl defendants because they alleged in
their answer that they were in possession,
and the court would probably have adj
judged them against Robert Capt and
Augerstein if his attention had not been
called to it. We reform the Judgment in
that particular and affirm it at appellants
cost.
Thomas G. Edwards ct al VS.. Sarah
Brown, from Hill COZ ty, opinion by
Gaines, A. j. This was suit below by
appellee against appellant for an undi-
vided one-half interest in 800 acres of
land. The land was patented to Edward
W. Brown husband of appellee) in 1854.
Said Brown and appellee were married in
1S4s and divorced in 1862, and the decree
of divorce made no disposition of this
land. In 1854 or 1866, E. W. Brown mar
ried again and died shortly after, leaving
q wife, Mary l. Brown, wh9s
in 1857 married John Haynes, and
in 1871 Haynes and wife conveyed the
property to Victoria M. Edwards, wife of.
appellant. Victoria M. Edwards niea
before this suit, and appellant testfHed
that he bought the land with his wife's
money and thought he was getting good
title, and knew nothing of appellee's
claim until shortly before this suit.
There is no controversy about the facts
of the case, but the court erred in finding
that appellee's right to the land
is as fully recognized by the
law as her husbands and subsequent pur-
chasers were bound to take notice and
hence cannot be innocent. 1t is settled
law in this state that the interests of hus-
band and wife in the community property
are equal, no matter IN whose name the